The Passion of Bradley Manning (14 page)

It is no coincidence that many of the public figures who have pointed out the essential congruence of the Global War on Terror with US domestic criminal justice—journalists like Margaret Kimberley and Bob Herbert, and law professor James Forman, Jr.—are African American. Black Americans, whose overall incarceration rate today is probably higher than that of Soviet citizens at the peak of the gulag, have long had ample reasons over the centuries, and now as much as ever, to doubt the fundamental rightness of the American justice system.

Both the international outcry over Bradley Manning's torture and the comparative silence over the tens of thousands of other Americans enduring similar treatment have not escaped comment from the black engagé intelligentsia. Jared Ball of Morgan State University argues that the outrage over Manning's treatment is fully warranted—but not the shock, given that such treatment is so widespread already. And the dissent over Manning's treatment, combined with near silence over the thousands of other Americans undergoing the very same treatment, evinces a certain moral myopia. However much we would like, we cannot pretend that the torture of Bradley Manning in solitary confinement is a blemish on an otherwise pristine justice system.

It is past time to connect the GWOT's programmatic use of torture, including solitary confinement, with the widespread application of similar treatment at home. In fact it's worth asking why these dots haven't been connected all along. Is it because so many of our domestic inmates, especially in the regions where elite national opinion is produced, are African-American and Latino, whereas most of our professional social reformers in the nonprofit sector are white and Asian? Is it because most of our elite public-interest lawyers and white-shoe
pro bono
advocates come out of a top half-dozen law schools where they most likely got a nice taste of well-tended federal courts, but little if any exposure to our overburdened state criminal courts? Is it just too depressing to think about our collapsing, overstrained criminal justice system in Guantánamo-like terms? Whatever the reasons, the gaping legal voids in our domestic justice and penal system have acquired the seamless invisibility of an open secret.

In fact, it's the grinding
familiarity
of much of the War on Terror's nastiness, with the draconian confinement of Bradley Manning very much included, that may best explain why many Americans view such horrors with a weary shrug. A common response to the high-minded shock-horror is exasperation tinged with resentment.
Hello, this has been going on right here at home for decades. Where the hell have you been?

Even in the postwar twentieth century, solitary confinement was not always a natural feature of the American penal system. Other paths were possible, and still are. Just as the construction boom in supermax prisons swept the United States, Great Britain took an opposite approach to dealing with troublesome inmates, finding controlled ways to increase prisoner sociability, autonomy and responsibility with the result of significantly reduced prison violence. That this solution may strike us as counterintuitive is a sign of how far we have traveled in just a few decades from the very notion of prisoner rehabilitation.

In the United States, alternatives to mass solitary confinement are not only possible, they are flourishing. Despite the Clinton years' huge construction boom in supermax prisons, solitary confinement is not a habit that is impossible to kick. Compelled by an ACLU lawsuit, Mississippi emptied out the 1000-bed supermax isolation wing of Parchman, the notorious Unit 32, famous for its howls, flooding toilets, stifling heat and chronic violence (and, in its pre-supermax days, for being the destination of incarcerated Freedom Riders during the civil rights struggles of 1961). The move was justified not on humanitarian grounds but as a cost-saving measure, as it surely was.

The American media and intellectual class is slowly noticing the normalized crisis of mass solitary confinement. The New York Bar Association has recently issued a condemnation of long-term isolation. The
New Yorker
spotlighted the issue in a widely read article by a physician on the deep damage done by the punishment. (As for the prospect of international law influencing national discourse, this is a red herring: international law wields very little influence or authority in the United States.)

Most important are the efforts of American prisoners themselves to roll back the practice of solitary confinement. In July 2011, the 1,056 inmates at Pelican Bay's supermax wing launched a hunger strike that spread throughout the California state prison system, even to its outsourced facilities in other states, involving 6,600 prisoners at its peak. The prisoners forced an admission from the California Department of Corrections and Rehabilitation that there was “some validity to what the inmates' concerns were”—but the other modest concessions—warm hats, wall calendars, and a promise to reconsider the isolation regs—have not been implemented. The Pelican Bay hunger strike will surely not be the last organized mass uprising of American prisoners whom the state is inexorably driving insane. “We're taking prisoners who were marginally neurotic and evolving them into people who are truly psychotic,” says Peter Schey, president of the Los Angeles-based Center for Human Rights and Constitutional Law. “And then we let them out.” In September 2011, the Pelican Bay hunger strikes began again, with 4,200 inmates across eight California prisons refusing meals.

The punitive confinement of Bradley Manning, far from being an anomaly, has been consistent with American laws and customs. Why should this obvious truth be so difficult to admit? Andrew Napolitano, the former judge and steadfastly libertarian television personality, denounced the Obama Administration's treatment of Manning as “KGB tactics,” and one can hardly disagree. But the epithet, connoting a radically un-American
foreignness
, is surely misplaced. The torture of Bradley Manning has been wholly in the American grain.

(02:27:47
PM
) bradass87:
i mean, we're better in some respects… we're much more subtle… use a lot more words and legal techniques to legitimize everything

(02:28:00
PM
) bradass87:
its better than disappearing in the middle of the night

(02:28:19
PM
) bradass87:
but just because something is more subtle, doesn't make it right

Rules are rules. Pundits, lay and professional, aghast at Bradley Manning's alleged lawbreaking have emphasized the point. Extreme over-classification is a problem, and Manning might have (allegedly) uncovered some bad stuff, but violating the oath to protect government secrets warrants the severest consequences because… rules are rules. Never mind that the only oath a soldier takes is to uphold the Constitution; never mind that the national defense of the United States and extreme over-classification are antithetical. All this is irrelevant, because the highest truth for many Americans seems to be that
rules are rules
.

Like all tautologies, the identity “Rules = Rules” ought to be airtight, foolproof, axiomatically sealed. But beware: tautologies are usually the last panicked redoubt of authority in peril; they carry a whiff of desperation. And what the whole Manning affair teaches us is that in early twenty first-century America, rules are very frequently ignored. If a rule is only selectively enforced it ceases to be a rule and becomes something else—an arbitrary instrument of authority, a weapon of the powerful—but not a rule. The law's draconian enforcement against Bradley Manning, set alongside the law's lackadaisical nonenforcement against the American power elite, highlights a worrisome trend: the erosion of equality before the law.

The rules-are-rules condemnation of Manning's alleged leaks has been widespread, from anonymous website commentators to the President of the United States. This is not surprising: given that the harm done by the leaks is only speculated and theorized rather than actually proven and documented, this angle of attack is perhaps all that's available to WikiLeaks' enemies. Barack Obama, who campaigned as the whistleblower's friend, has responded to the Manning affair with schoolmasterly lecturing. “He broke the law,” the Commander-in-Chief said to the group of Manning supporters who disrupted a Democratic Party fundraiser in San Francisco. Obama told them that the same law applies to the President and private alike:

This is a textbook description of the Rule of Law—in John Adams' words, we are “a nation of laws, not men.” But is this how our system really works?

In fact, as we have already seen, elite leaks of classified material to the media are frequent and routine—an accepted means for official Washington to communicate with the public. There is no legal distinction between the leak of, say, the classified drone strike procedures by some unnamed CIA official and what Bradley Manning allegedly did. High government officials frequently break the law with impunity, recognizing— correctly—that informing the public of nearly all matters of foreign policy is no threat to national security. And no matter what such officials say to Bob Woodward or Seymour Hersh, they are prosecuted only in the rarest circumstances. Our law-professor-in-chief may lecture otherwise, but when official Washington decides to leak, the law fades away.

On the other hand, when the same laws are applied to an Army private, they take on the force of a thunderbolt. Are rules still rules? Increasingly, perhaps especially since the autumn of 2001, many of our most important rules—those related to war and the diverse set of practices known as “national security”—have turned out to be merely sets of words strung together, of no great consequence.

Were the rules really rules when the United States launched its war against Iraq in the spring of 2003? The United Nations charter, which proscribes aggressive wars, a category that very much includes preventive wars, was as gleefully flouted as if it were an archaic town ordinance prohibiting jump-rope on the Sabbath. The result has been a bloodbath, costly in human life and money. (To repeat the appalling stat that is this book's mournful bass Line, the American military response to 9/11 has killed at the very least 140,000 civilians, 8,300 American soldiers andmilitary contractors and cost the US some $3.7 trillion.) Nevertheless, calls that the Bush-Cheneyleadership be held accountable for this destructive act of aggression have been brushed aside, as have demands that the torture regime and mass illegal wiretapping also be investigated and punished.

Today, as chaos rules Iraq, the elite officials who launched the war face no consequences. Bush and Cheney, Rumsfeld and Rice and several more have published bestselling memoirs, self-exonerations blaming the cataclysm on colleagues, underlings and, of course, the victims. Throughout the US mainstream media, where these former officials continue to appear regularly, they get solicitous treatment. The presumption of their authority and expertise has barely been dented by their colossal misdeeds—in fact, the disaster has only added to their luster, from the Aspen Festival of Ideas to various Ivy League lecture halls to the Sunday morning network gabfests. As columnist Glenn Greenwald has bitterly noted, the phrase “culture of impunity,” routinely applied by Westerners to places like Kenya and Cambodia, is more than apt for official Washington as well, where rules have long ceased to apply.

CIA officers who tortured prisoners violated the Geneva Convention and American law, and to date they have faced no consequences for breaking the rules. They destroyed evidence, shredding records and “misplacing” videos of interrogations that involved torture, and though these acts of defiance have enraged the judiciary, everyone knows the agents will face no penalty. The Obama Administration has thrown its weight around in Italy, Spain and Germany to stifle investigations of CIA officers who may have violated the Geneva Conventions. Rules may be rules for some, but not for CIA interrogators.

Many people thought this would change once Barack Obama assumed office, and many people were wrong. As soon as he stepped into the Oval Office, the new President pledged never to launch any probe, much less prosecution, to hold these figures responsible.“Look forward, not backward” is the slogan: any rules that threaten the high and mighty can be shrugged off. Obama loyalists such as
Nation
magazine columnist Melissa Harris-Perry begged Americans to reconcile with Dick Cheney, as if the power to forgive belonged to Americans, and not to Iraqi victims—a perversion of Christian doctrine that allows the perpetrators to tearfully forgive themselves.

Elite impunity tolerates not even the slightest imputation of guilt. Sensing that the White House does not wish to spend political capital on prosecuting elite lawbreakers, some have proposed an award for the war on terror's various whistleblowers and naysayers—a recognition of those who have upheld honor and the rule of law under stress, and an implicit rebuke to those who buckled. But even this gesture of “positive reinforcement” has been rejected by the Obama administration as insufficiently cautious.

By the time impunity has flowed from the cabinet secretary to the common infantryman, it is only partially depleted. The consequences of the “Haditha Massacre” are a vivid case in point. On November 19, 2005, a group of eight US Marines allegedly killed twenty-four Iraqis, at least fifteen of them civilians, in the western city of Haditha. An IED had killed one Marine and wounded two others earlier in the day, and in retaliation eight troops from the Third Battalion first shot dead nine Iraqi men, whom the soldiers later claimed were insurgents, and then went house-to-house killing civilians with grenades. After a long-delayed investigation, eight Marines were charged a year later: the largest single war-crimes indictment against American troops in Iraq or Afghanistan. But five years after the charges, six of the accused soldiers have seen their charges dismissed, and another was found not guilty. The trial of the their leader, Sergeant Frank Wuterich, has just ended with a guilty plea to a single charge of negligent dereliction of duty, a minor offense that will result in no jail time.

There have been a handful of prosecutions of US soldiers for the cold-blooded killing of Afghan civilians. But in wartime, soldiers who open fire on civilians are unlikely to face any legal consequences. Earlier, I cited Ethan McCord, the infantryman filmed in the “Collateral Murder” video retrieving wounded children, who recalled his battalion commander ordering troops to issue “360 degree rotational fire” to “kill every [expletive] in the street!” There can be little doubt this order is a violation of the Uniform Code of Military Justice, and of the broadly agreed-upon laws of armed conflict. (“That is absolutely a war crime,” David Glazier, an attorney at the National Center for Military Justice told me.) But don't expect an investigation into McCord's old battalion commander. When foreign troops invade and occupy, they enjoy a high degree of immunity until the occupied nation summons the power and the will to deny it to their armed invaders. This immunity to the rule of law is in fact an essential condition for military occupation. It was the Iraqi government's refusal to grant ongoing immunity for US troops that rang a virtual end to the American occupation in late 2011.

None of this is a new development since the American invasions of Afghanistan and Iraq. The My Lai massacre, in which an American battalion killed some 500 Vietnamese civilians in 1968, led not to the enforcement of the Uniform Code of Military Justice's own rules against methodically slaughtering unarmed civilians, but to an official cover-up. Of the twelve officers who were eventually indicted, only one, Lieutenant William Calley, was convicted. He served three and a half months of a “life” sentence before walking free. Armies are simply not very good at enforcing their own rules against their own soldiers.

No summary of our post-9/11 lawless rampage would be complete without an inventory of the lawyers who approved, encouraged and authorized the misdeeds. John Yoo is the most famous of the attorneys who authorize torture from inside the Office of Legal Counsel; he remains a tenured professor of law at the University of California, Berkeley. Though less famous, the case of Jay Bybee is more chilling: the Office of Legal Counsel attorney who justified various forms of torture in precise, lawyerly detail is now a judge on the US Court of Appeals on the Ninth Circuit, just one layer of authority below the Supreme Court of the United States. And though these lawyers who authorized torture have received criticism, the lawyers at the Departments of State and Defense who wrote up legal rationales for the Iraq War itself go blameless: incredibly, William Howard Taft IV, who as legal adviser to the State Department provided the legal rationale for war, is still considered an “authority” in the field of international law.

If Bradley Manning had launched a war that slaughtered hundreds of thousands; if he had tortured prisoners; if he had shot dead Iraqi civilians: if he were a lawyer, justifying all of the above, or some general or cabinet-level official whispering state secrets to Bob Woodward over a martini— he'd emerge unscathed.

We lawyers tend to think that law is by nature something good and just and that it's dirty politics that fouls everything up. But the WikiLeaks disclosures reveal something far more troubling than violations of the rule of law; they reveal the pathology of the laws themselves. Can it be possible that the Rule of Law is not an unmitigated good? In fact, several of the most appalling atrocities revealed in the leaks are in fact perfectly legal, showing us that the rules and laws of the game are often profoundly problematic, if not downright rotten.

Let us start with the “Collateral Murder” video watched by millions around the world, an unclassified item allegedly leaked by Bradley Manning. To recap, the video shows an Apache gunship opening fire on a group of civilians, including two Reuters News Agency employees, accompanied by a couple of men with weapons; the gunships circle back to shoot the wounded dead; when a van comes in to retrieve the wounded, the gunship shoots it to pieces too. All the while, pilot and crew joke amongst themselves, a violation of etiquette that has, weirdly, drawn the most condemnation. One might expect that such a graphic atrocity would be fodder for the condemnation of the major human rights organizations—Amnesty International, Human Rights Watch, Human Rights First—who monitor violations of the laws of war.